General Principles

Question 1

What are the tests for insanity? (6.9%)

Answer 1

[Mark Isn’t Disability Mindful]

A defendant may be entitled to acquittal if, at the time of the crime, the defendant was legally insane. There are four formulations of the test to be applied in order to make this determination:

1) M’Naghten: Defendant either did not know the nature of the act or did not know that the act was wrong because of a mental disease or defect (e.g. delusional; believed different facts, so didn’t know the act was wrong)
2) Irresistible Impulse: Defendant had a mental disease or defect that prevents him from:
a) controlling himself, or
b) conforming his conduct to the law.
3) Durham Rule: Defendant would not have committed the crime but for his having a mental disease or defect (rarely used because so defendant-friendly)
4) Model Penal Code: Due to a mental disease or defect, the defendant did not have the substantial capacity to:
a) appreciate the wrongfulness of his actions, or
b) to conform his conduct to the law (combines the M’Naghten and irresistible-impulse tests)

Note 6: All four tests require that the defendant have a mental disease or defect. Being a sociopath [or psychopath] is not enough to constitute insanity.

Question 2

1. What are the specific intent crimes? (17.2%)
2. What are some defenses applicable only to specific intent crimes?

Answer 2

1. The specific intent crimes include:
   i) First-degree murder;
   ii) Inchoate offenses (attempt, solicitation, conspiracy);
   iii) Assault with intent to commit a battery; and
   iv) Theft offenses (larceny, larceny by trick, false pretenses, embezzlement, forgery, burglary, robbery).

[Mnemonic: FIAT]

2. voluntary intoxication and unreasonable mistake of fact

Question 3

What is malice and which crimes require it? (17.2%)

Answer 3

Malice is a reckless disregard of a high risk of harm. Malice requires only a criminal act without excuse, justification, or mitigation; intent can be inferred from the accomplishment of the act. The defendant realizes the risk and acts anyway.

The crimes of common-law murder and arson require malice. Although these two crimes appear to have an “intent” requirement (e.g., intent to kill), malice requires only a criminal act without excuse, justification, or mitigation.

Example: Arson is the malicious burning of the dwelling of another. Lynn is at Paul’s house for a Fourth of July cookout. Some of the fireworks seem to be duds, so Lynn tosses them onto the grill. Some explode and catch Paul’s house on fire. Lynn is charged with arson. At trial, she argues that she didn’t want to cause Paul’s house to burn down. Can Lynn be convicted of arson?

Yes, no specific intent required.

Question 4

What is a general intent crime and what are some examples? (17.2%)

Answer 4

General intent is the intent to perform a particular act, when that act is unlawful. The defendant does not need to know that the act is unlawful; it is sufficient to intend to perform the act that the law condemns.

Examples include manslaughter(?), battery, rape, kidnapping, and false imprisonment.

Note: Generally, acts done knowingly, recklessly, or negligently under the Model Penal Code (MPC) are general-intent crimes.

Exam Tip: General intent crimes most likely to be tested on the MBE include manslaughter and battery.

Question 5

Name and define the levels of culpability defined by the MPC. (17.2%)

Answer 5

1. Purposely: defendant’s conscious objective is to engage in the conduct or to cause a certain result

• Example 14: Patricia raises her gun, points it at Vic, screams “die, you two- timing no-good piece of garbage,” and fires, killing him. She has acted purposely.

2. Knowingly or willfully: defendant is aware that his conduct is of the nature required to commit the crime and that the result is practically certain to occur based on his conduct

• Example 15: Patricia is angry at Vic but can’t stand the sight of blood. So she decides to kill Vic by putting arsenic in his coffee Thermos. She knows Vic shares his coffee with his co-worker, Virgil, but she does not care what happens to Virgil. Both men drink the coffee and die. With respect to Vic, Patricia has acted purposely, but with respect to Virgil, she has acted knowingly, since she didn’t have the intent that Virgil die, although she knew that the result was practically certain to occur

3. Recklessly: defendant acts with a conscious disregard of a substantial and unjustifiable risk (that a material element of a crime exists or will result from his conduct) that constitutes a gross deviation from the standard of conduct of a law-abiding person

• Example 16: Patricia is a Golden State Warriors fan who lives in downtown Oakland. When the Warriors win their 77th regular season game, she’s so excited that she takes her semi-automatic gun out of the house and fires several dozen rounds into the air. Several of the rounds hit Vic. She didn’t want to hit him, and she actually didn’t know he was standing nearby, but she acted recklessly.

4. Negligently: defendant should be aware of a substantial and unjustifiable risk and acts in a way that grossly deviates from the standard of care of a reasonable person in the same situation

Note: If a statute specifies a mental state, proof of a more culpable mental state satisfies the mens rea requirement.